The User Account Agreement In the case of a social network, ownership generally passes to the heirs.
Digital legacy – Contract for a social media user account in the event of inheritance: The contract governing a user account on a social network is, in principle, transferred to the heirs of the original account holder by way of universal succession. As a result, the heirs have a claim against the network operator for access to the account, including the communication content stored therein. (Federal Court of Justice (BGH) judgement of 12 July 2018, Case No. III ZR 183/17).
Long awaited and now finally here: the Federal Court of Justice’s judgement is based on the following summary of the facts:
The claimant is the mother of the deceased, who died at the age of 15. Together with the father, they form a community of heirs. The defendant operates the social network Facebook. In 2011, the parents consented to their daughter, who was 14 at the time, registering with Facebook. In 2012, the deceased died in unexplained circumstances following a tube accident. The defendant subsequently placed the deceased’s user account in memorialised status, which meant that the claimant was unable to log into her daughter’s user account using the login details. However, the content of the account remained intact. The claimant argued in her action that the community of heirs required access to the user account in order to ascertain whether her daughter had harboured suicidal intentions shortly before her death and to defend against claims for damages by the underground driver. The Regional Court upheld the claim, whilst the Higher Regional Court dismissed it. The appeal, which was granted by the court of appeal, was lodged against this decision. The Federal Court of Justice has quashed the judgment of the Higher Regional Court and reinstated the judgment of the court of first instance.
In the judges’ view, the heirs are entitled to claim against the defendant for access to the deceased’s user account and the communications stored therein. This follows from the user agreement concluded between the deceased and the defendant, which, by virtue of universal succession, has been transferred to Section 1922(1) of the German Civil Code (BGB) had passed to the parents as legal heirs.
The transferability of the user account is not precluded by any contractual provisions, as the defendant’s terms of use do not contain any provisions on this matter.
Furthermore, the clauses relating to the state of mourning were, on the one hand, not validly incorporated into the contract. On the other hand, following a review of their content, they Section 307(1) and (2) of the German Civil Code (BGB) would not stand up to scrutiny and would therefore be invalid.
Furthermore, the user agreement is not a contract of a strictly personal nature. In particular, its strictly personal nature does not arise from reasons implicitly assumed in the user agreement – and thus inherent therein – relating to the protection of the personal rights of the testator’s communication partners. Admittedly, the user may assume that messages between users of the network will, in any event, remain confidential in principle and will not be disclosed by the defendant to third parties. However, the defendant’s contractual obligation to transmit and make available messages and other content is, from the outset, account-specific. It does not involve transmitting such content to a specific third party, but merely to the specified user account. Accordingly, whilst the sender of a message may rely on the defendant making it available only to the user account selected by them, the Federal Court of Justice (BGH) rejects the notion of a legitimate expectation that only the account holder, and not third parties, will gain knowledge of the account’s contents. In general, one must anticipate the misuse of access by third parties, the granting of access by the account holder, or the inheritance of the contractual relationship.
The Federal Court of Justice (BGH) made it clear that there can be no distinction between assets and items of a strictly personal nature when it comes to access to the account. According to the legislative assessment, legal interests relating to items of a strictly personal nature were also transferred to the heirs; for example, diaries and personal letters, as is evident from Section 2047(2) and Section 2373, second sentence, of the German Civil Code (BGB) ...results in. There is no need for a different approach with regard to digital content.
Furthermore, the transferability of the user account does not constitute a breach of the deceased’s post-mortem right of personality, nor does the right to privacy of telecommunications communications preclude the claimant’s claim. Since the heir fully assumes the position of the deceased, he is in any event not an „other person“ within the meaning of Section 88(3) of the Telecommunications Act (TKG). Data protection issues relating to the testator are also not affected, as the Regulation only protects living persons.
It should be noted that no ruling has been made to the effect that a digital estate is, as a matter of principle, freely inheritable. In this case, the Federal Court of Justice ruled that the claimant must be granted access to the user account solely because the defendant had not established any provisions regarding the inheritable or non-inheritable nature of the user account. Had the defendant included such rules in its terms of use, the outcome of the case could have been very different. This is explicitly stated in the grounds for the judgement (paragraphs 24 and 25): „The transferability of claims may be contractually excluded. However, this is not the case here. (…) The defendant’s terms of use contain no provision regarding the transferability of the user contract and the contents of the user account. … It therefore remains an open question whether the transferability of the contractual user relationship and the resulting right of access to the account can, in principle, be validly excluded in general terms and conditions.“
It is likely that the defendant, like other online services, will update its terms and conditions in the coming months and amend the wording in line with the judgement, meaning that the heirs will, after all, not have access to a deceased person’s user account.
Regardless of any future changes to the terms and conditions of online services and any subsequent court rulings, it is important these days to make arrangements for one’s digital estate. Moreover, an emergency folder no longer contains just lists of insurance policies or similar documents.
Do you have any questions about digital inheritance or drawing up a will? We’d be happy to advise you!